FIRST SECTION

Application no. 52340/10 Gabriele FÃœRST-PFEIFER against Austria lodged on 9 September 2010

STATEMENT OF FACTS

The applicant, Ms Gabriele Fürst-Pfeifer , is an Austrian national, who was born in 1964 and lives in Mödling . She is represented before the Court by Mr G. Lansky , a lawyer practising in Vienna .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a psychiatrist and works since the year 2000 as a psychological expert in court proceedings, mainly within the framework of custody related disputes.

On 23 December 2008 an article appeared in the weekly print publication “ Bezirksbl ä tter Wiener Neustadt ”, published and edited by the “Print” Publisher Company ltd ., that reported on a psychological expert opinion concerning the applicant herself, dating from 1993.

The article bore the headline “The quality of experts in the spotlight” (“ Gutachterqualit ä t im Visier ”) and explained that a psychological expert opinion had been commissioned examining the mental status of the applicant in the course of civil proceedings dealing with the breach of promise of marriage. That expert opinion by a Viennese neurologist dating from 1993 had described “psychological deficits”, such as pronounced up and down mood swings, panic attacks, suicidal thoughts and optical illusions together with paranoid ideas. The expert at the time had concluded that the applicant ’ s impairments were hereditary. The article went on stating that three years later, the applicant had been introduced to the “scene of experts” at the Wiener Neustadt Regional Court, and that her integrity had been beyond reproach for a decade. It followed comments by a member of the Green Party, the Youth Advocate at the Regional Government of Lower Austria and the Vice President of the Wiener Neustadt Regional Court who was responsible for managing the list of experts at the court.

As a result of the reporting the applicant was faced with related questions from colleagues and patients, and proceedings were initiated at the Wiener Neustadt Regional Court concerning her ability to work as a court-commissioned expert. In the course of those proceedings the applicant ’ s mental status was also to be examined.

On 7 April 2009 the applicant lodged an action with the courts requesting damages under the Media Act ( Mediengesetz ) and publication of the judgment. She claimed that the article and in particular the passages dealing with the psychological expert opinion of the applicant violated her intimate personal sphere and compromised her publicly.

On 2 October 2009 the Innsbruck Regional Court ( Landesgericht Innsbruck ) followed the applicant ’ s motions, ordered the publisher to pay damages in the amount of 5,000 euros and the publication of the operative part of the judgment. Furthermore, the publisher had to bear the costs of the proceedings. The court found that the average reader would understand the article as stating that the applicant was incapable of being an expert in custody proceedings because of her own mental health impairments in 1993 and as questioning the quality of the applicant ’ s work so far. That psychological illness was directly linked to the intimate personal sphere was beyond doubt. The present article not only mentioned the applicant ’ s mental health status, but also crossly exaggerated single symptoms, which was also capable of compromising her. The article was so incomplete and distorted that it could not be considered as reporting truthful facts. The Regional Court especially noted that the article did not mention that the period of examination lay even before 1993 and that certain aspects of the expert opinion had been published, while others had not. In a scandalous way the article created the impression that the applicant had rendered decisive opinions in custody proceedings for over a decade while suffering herself from the symptoms described above. Furthermore, the publication was not linked in any way to the applicant ’ s public status. There was no connection between the applicant ’ s work at present and her mental status years ago. Her work in the context of custody proceedings was also not public.

The publisher filed an appeal on points of law and fact, as well as against the sentence ( Berufung wegen Nichtigkeit , Schuld und Strafe ) .

Thereupon, on 11 February 2010, the Innsbruck Court of Appeal ( Oberlandesgericht Innsbruck ) followed the appeal, set aside the judgment of the first instance and dismissed the applicant ’ s motions. In contrast to the Regional Court it found that the average reader would understand from the article at issue that in 1993 an expert opinion was rendered in respect of the applicant that showed the above mentioned psychological impairments. However, it was also stated that the applicant ’ s integrity had not been questioned for over a decade. The article, while focusing on the applicant ’ s work in custody proceedings, gave room to comments from the Youth Advocate of the Regional Government of Lower Austria, a member of the Green Party and the Vice President of the Wiener Neustadt Regional Court. It derived however not from the article that the applicant was not competent to exercise her profession as a psychological expert. Furthermore, the published information was true. The fact that only parts of the expert opinion were repeated in the article did not render the article distortive, nor the relevant information untrue.

As regards the connection to public life and public interest, the Court of Appeal found that the public administration together with the administration of justice were part of public life. The applicant was included in the list of court-commissioned experts since the year 2000, and her repeated work as an expert in court proceedings must be considered as belonging to the public sphere. The activity was closely linked to the administration of justice and influenced considerably the decision-making process of the judges. The impugned article concerned the applicant ’ s activity as an expert in custody proceedings. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of a well working administration of justice, which was what had happened as a next step in the present case. Insofar as reported truthfully and linked to a person ’ s public status, also information belonging to the intimate personal sphere was permitted to be published. Therefore, the Court of Appeal concluded that the article by way of an appropriate commentary critically examined a matter of public interest and therefore exercised its role as a “public watchdog”.

That judgment was served on the applicant ’ s representative on 11 March 2010.

B. Relevant domestic law

Section 7 of the Media Act, which has the title “Interference with a person ’ s most intimate personal sphere” ( Verletzung des höchstpersönlichen Lebensbereiches ), reads as follows:

“(1) If a person ’ s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ...

(2) No compensation claim under paragraph 1 exists if

1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;

2. the publication is true and has a direct connection to public life;

3. in the circumstances it could have been assumed that the person concerned had agreed to the publication;

4. it is a direct broadcast on radio or television (live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;

5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”

COMPLAINT

The applicant complains under Article 8 of the Convention that the appeal decision by the Court of Appeal violated her right to respect for her private life.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for her private life contrary to Article 8 of the Convention?